A guide to proposed Freedom of Information reforms in Australia: What they mean for Commonwealth agencies – Norton Rose Fulbright

Report on Proposed Amendments to the Freedom of Information Act and Implications for Sustainable Development Goal 16

Introduction: Aligning with Global Transparency Standards

A legislative bill proposes significant reforms to Australia’s Freedom of Information (FOI) Act. These amendments are analyzed here in the context of Sustainable Development Goal 16 (SDG 16), which promotes peace, justice, and strong institutions. Specifically, the proposed changes impact Target 16.6, focused on developing effective, accountable, and transparent institutions, and Target 16.10, which aims to ensure public access to information.

Analysis of Key Amendments in Relation to SDG 16

Object and Scope: Balancing Transparency with Institutional Efficacy

The proposed amendments recalibrate the core objective of the FOI Act, directly influencing the framework for public access to information as outlined in SDG 16.10.

• Revised Object Clause: The Act’s objective will be amended to grant access to information “as far as possible,” while explicitly incorporating “safeguards to ensure the protection of essential private interests and the proper and effective operation of government.” This change seeks to strike a balance between the public’s right to know (SDG 16.10) and the need for effective, functioning government institutions (SDG 16.6).
• Scope of Documentation: The definition of an “document of an agency” is set to be narrowed. It will now only include documents related to the agency’s official operations, explicitly excluding purely personal correspondence of employees. This clarification aims to enhance institutional efficiency by focusing resources on legitimate requests pertinent to government functions, thereby supporting the development of effective institutions under SDG 16.6.

Application Fees: Economic Barriers and Institutional Resource Management

The introduction of fees for FOI requests and reviews presents a significant policy shift with direct implications for equitable public access to information (SDG 16.10).

1. Fee Implementation: A new provision, s 93C, will enable regulations to prescribe fees for FOI requests, internal reviews, and Information Commissioner (IC) reviews.
2. Exemptions and Waivers: To mitigate potential access barriers, the amendments include key considerations:
   • No fee will be payable for accessing one’s own personal information.
   • Regulations must provide for the waiver or remission of fees in circumstances of proven financial hardship.

While the introduction of fees may support institutional effectiveness (SDG 16.6) by deterring frivolous requests and managing agency resources, it poses a potential challenge to the universal right of access to information enshrined in SDG 16.10. The provision for waivers is a critical measure intended to uphold this principle for disadvantaged groups.

Procedural Timeframes: Enhancing Institutional Accountability and Efficiency

The bill proposes a shift from calendar days to “working days” for all statutory timeframes, alongside other adjustments, impacting the accountability and responsiveness of public institutions (SDG 16.6).

Definition of ‘Working Day’

A “working day” is defined as any day excluding Saturdays, Sundays, Australian Capital Territory public holidays, and the period from 25 December to 1 January.

Revised Processing Deadlines

The transition to a “working day” metric will standardize and, in practice, extend several key processing periods. Notable changes include:

• Acknowledgement of Request: Extended from 14 days to 15 working days.
• Standard Request Processing: Extended from 30 days to 30 working days.
• Internal Reviews: Extended from 30 days to 30 working days.
• Consultation with Other Agencies/Ministers: A new timeframe of 15 working days is introduced.

Extension of Time Provisions

The mechanism for extending decision deadlines is also being reformed. The 30-day cap on extensions will be removed, but any extension will require the applicant’s written agreement. This change promotes a more collaborative process but requires applicants to consent to potentially longer waits, affecting the timeliness of access under SDG 16.10.

Conclusion: Reforming for Institutional Strength and Managed Transparency

The proposed amendments to the FOI Act represent a comprehensive effort to refine Australia’s information access framework. The changes reflect a dual focus: strengthening the operational capacity of government agencies (SDG 16.6) while managing the public’s right to access information (SDG 16.10). The introduction of fees, revised definitions, and adjusted timeframes will require agencies and applicants to adapt to new procedures. The successful implementation of these reforms will be measured by their ability to foster more efficient and accountable public institutions without unduly compromising the fundamental principle of public access to information.

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 16: Peace, Justice and Strong Institutions

  The article is fundamentally about the legal and administrative framework governing public access to government information in Australia. This directly relates to SDG 16, which aims to build effective, accountable, and inclusive institutions. The proposed amendments to the Freedom of Information (FOI) Act are a clear example of a nation refining its laws to balance public transparency with the operational effectiveness of its government agencies. The article’s discussion on the “Object and scope of the FOI Act,” which emphasizes access while “providing safeguards… for the proper and effective operation of government,” is central to the principles of SDG 16.

2. What specific targets under those SDGs can be identified based on the article’s content?

• Target 16.10: Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.

  This target is the most relevant. The entire article analyzes proposed changes to Australia’s primary national legislation for public access to information—the FOI Act. The amendments discussed, such as the introduction of fees, changes to timeframes for processing requests, and the revised definition of an “agency document,” all directly affect the mechanisms and extent of public access to information as governed by this law.

• Target 16.6: Develop effective, accountable and transparent institutions at all levels.

  The article connects to this target by detailing reforms aimed at improving the efficiency of government agencies in handling information requests. The introduction of fees is presented as a way to “act as a deterrent to frivolous requests, helping agencies to prioritise genuine applications, while assisting in managing agency resources.” Furthermore, the adjustments to timeframes and the clarification of scope are intended to streamline processes, contributing to the development of more “effective” and accountable institutions as envisioned by this target.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• Indicator 16.10.2: Number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information.

  The article serves as a case study of the implementation and reform of a statutory guarantee for public access to information. While it doesn’t provide a number, it details the specific nature of Australia’s implementation of its FOI Act, including the legal and procedural rules that define how access is granted. The proposed amendments represent an evolution in this implementation.

• Implied Indicators for Targets 16.6 and 16.10

  The article contains specific, measurable data points that can function as indicators for the effectiveness and accessibility of the information access system:

  • Processing Timeframes: The article provides a detailed table that explicitly compares “Current timeframe” with “Proposed timeframe” for various FOI processes (e.g., changing the timeframe for processing requests from “30 days” to “30 working days”). This change is a direct, quantifiable indicator of institutional responsiveness and efficiency.
  • Application Fees: The proposed introduction of fees for FOI requests is a key change mentioned in the article. The amount of the fee and the number of requests subject to fees would be a direct indicator of a potential barrier to access. The article states the Bill “introduces provisions requiring an FOI request… to be accompanied by any fee prescribed by the regulations.”
  • Fee Waivers for Financial Hardship: The article explicitly notes that “The regulations must also provide for the waiver or remission (in whole or part) of fees, in prescribed circumstances of financial hardship.” The number of waivers granted would be a crucial indicator for measuring whether access to information remains equitable and does not exclude individuals based on their financial status.

4. Table of SDGs, Targets, and Indicators

Source: nortonrosefulbright.com